Judicial panel plans to act rapidly to fill 2 vacancies

Chief Justice Moon is told that he picked Big Isle judges too late

Hawaii Chief Justice Ronald Moon's nominations for two seats on the Big Island District Court came too late, the state attorney general has said in an opinion.

On Monday, Moon nominated Anthony K. Bartholomew, a deputy public defender in Hilo, and Harry P. Freitas, a deputy corporation counsel for the County of Hawaii, to fill vacancies created by the retirement of two judges.

But Moon's deadline to make the appointment was Friday.

The attorney general's office says that under the state Constitution, the Judicial Selection Commission must now fill the vacancies on the Big Island courts.

The Judicial Selection Commission intends to act quickly to appoint two Big Island judges after the state attorney general invalidated the appointments made by Chief Justice Ronald Moon on Monday.

Commission Vice Chairwoman Rosemary Fazio said the commission was expected to meet last night to discuss the matter and decide when to vote.

The state Constitution does not set a deadline for appointments by the commission, "but we will act as quickly as possible," Fazio said.

When asked if it were possible the same two named by the chief justice could be selected, she said, "We have to make our selection from the list that we gave the chief justice -- that's the only requirement."

The appointments still require Senate confirmation.

The state attorney general informed the Judicial Selection Commission late Tuesday that Moon had failed to make the appointments within the 30-day time period.

Court observers say it is unprecedented for a judicial appointment by the chief justice to be invalidated for not meeting the constitutionally mandated deadline.

The commission had presented two lists of names to Moon on March 1. Moon appointed Anthony K. Bartholomew, a Hilo deputy public defender, and Harry P. Freitas, deputy corporation counsel, on April 2.

Neither Bartholomew, who was in court all day yesterday, nor Freitas could be reached for comment.

Senate President Colleen Hanabusa acknowledged the attorney general's opinion yesterday and returned the two nominees' names to the chief justice.

"We have no choice but to return the names to the chief justice for further action," she said in a statement. "The Constitution mandates a time period, and we need to follow constitutional requirements."

She said she hoped the commission would come back with two names soon.

"The Senate needs to advise and consent on the nominations, the same as if they came from the chief justice, and the Judiciary Committee needs adequate time to do its job. Time is getting short in this session," she said.

Jeffrey Portnoy, president of the Hawaii State Bar Association, said the group was aware there was a timing issue but that it appeared Moon had miscalculated the time unintentionally. The bar association was waiting for the attorney general's opinion before soliciting comments about the nominees from its members.

He said the association expects to move quickly as soon as the commission makes its selection, to meet and interview the nominees and come up with an evaluation that they can present to the Senate Judiciary Committee.

"We advise, and our members believe, in following the American Bar Association guidelines -- that it's our responsibility to provide our input on nominees," Portnoy said.

Moon, in a written statement, said he had computed the deadline for appointments based on statutory and rule provisions that authorize an act that becomes due on a weekend or holiday to be performed the next business day.

In 2002, Gov. Ben Cayetano missed the deadline for appointing a successor for a Maui Circuit Court judgeship. His office called it an oversight, and the commission made the nomination instead.

CLARIFICATION

Friday, April 6, 2007

» Hawaii Chief Justice Ronald Moon technically had through March 31 to appoint two Big Island judges, but because March 31 was a Saturday when state offices were closed, he had to submit his nominations by the end of day March 30. A Page A1 story in yesterday's morning edition about how Moon missed his deadline to submit the nominations did not specify that the official deadline fell on a Saturday.